Regan v. State

• Decision Date: 28 April 2015
• Docket Number: No. S–14–0196.,S–14–0196.
• Citation: 2015 WY 62,350 P.3d 702
• Parties: Patrick J. REGAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

350 P.3d 702

2015 WY 62

Patrick J. REGAN, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0196.

Supreme Court of Wyoming.

April 28, 2015.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student Director, and John D. Ringenberg, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Ringenberg.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

DAVIS, Justice.

[¶ 1] A jury convicted Appellant Patrick J. Regan of felony possession of marijuana. On appeal, he contends that the evidence was insufficient to support his conviction in three respects. We agree with one of those contentions and therefore reverse his conviction for felony possession. However, we find the evidence sufficient to support the lesser included offense of misdemeanor possession and remand for resentencing on that offense.

ISSUE

[¶ 2] Was the evidence presented at trial sufficient to support a verdict that Regan constructively possessed a felony amount of marijuana?

FACTS

[¶ 3] On October 26, 2012, Regan and his roommate¹ Shayne Trujillo drove from Denver to Gillette.² A six-year veteran of the Gillette Police Department, Officer Troy Cyr, pulled them over after they stopped at a yield sign because there was no traffic on the roadway to yield to, and because the officer could not tell whether the vehicle had a rear license plate. Regan was the driver and owner. When Officer Cyr approached his window, he immediately smelled raw marijuana and requested that a drug dog be dispatched. Officer Vos arrived on the scene, spoke to Officer Cyr, and explained to Regan and Trujillo why he was there. He also smelled marijuana before retrieving his dog, Jordy, from his patrol vehicle. Jordy alerted at the front passenger door, signaling that it had detected the odor of a controlled substance in the car.

[¶ 4] Officer Vos then directed Trujillo to get out of the car, looked inside, and saw two glass jars containing what he recognized as marijuana on the passenger floorboard. After further inspection of the vehicle's interior, he discovered a plastic grocery bag, Ziploc sandwich bags, and a large white plastic bin in the passenger and cargo portions of the vehicle. Each contained clumps of a green leafy substance that he recognized as marijuana. The total weight of the marijuana was approximately one and a half pounds. Vos also found paraphernalia commonly associated with the sale of marijuana and $1,000 in cash in the glove box.

[¶ 5] The officers arrested Regan and Trujillo and took them to the Gillette police station, where Regan voluntarily consented to an interview. Officer Greg Brothers interviewed Regan, and he testified at trial to Regan's account of the journey to Gillette with Trujillo. While still in Denver, Regan saw Trujillo load marijuana into his vehicle. He told Officer Brothers that he had expressly rejected Trujillo's offer to join in Trujillo's plan to make money distributing marijuana because “it wasn't worth the risk.”

[¶ 6] When they arrived in Gillette, Trujillo directed Regan to three different locations, and at each one Trujillo got out of the car and delivered marijuana. Regan remained in the vehicle at each stop. He gave the interviewing officer detailed descriptions of each location and the amount of marijuana Trujillo delivered at each stop. He showed him the locations on a map, and then helped officers identify them in an unmarked police car. Regan admitted that a quarter-ounce of the marijuana found in the car was his, but maintained that the rest of the marijuana in the vehicle belonged solely to Trujillo.

[¶ 7] Trujillo testified at Regan's trial and corroborated Regan's claim. He confirmed his admission to officers that over a pound of marijuana in the car belonged exclusively to him, and that no one else had anything to do with it. He also confirmed that in the course of entering a guilty plea to felony possession of the marijuana found in Regan's car, he had admitted to the court that more than a pound of marijuana was his.

[¶ 8] After the substance was seized from Regan's vehicle, it was sent to the Wyoming State Crime Laboratory, where it was analyzed by forensic chemist Lance Allen. Mr. Allen testified that his tests identified tetrahydrocannabinol (THC) in all of the samples, and that THC is the active component in marijuana. When the State asked whether he could therefore confirm that the substance was marijuana, he responded, “I'm not a botanist, I'm a chemist, I identified THC.” However, he also testified that one could conclude from a positive THC test that the tested substance was marijuana.

[¶ 9] The jury found Regan guilty of felony possession of marijuana under Wyo. Stat. Ann. § 35–7–1031(c)(iii). He was sentenced to not less than four nor more than five years of incarceration and a $10,000 fine, which were suspended in favor of five years of supervised probation and a $5,000 fine. This appeal was timely perfected.

STANDARD OF REVIEW

[¶ 10] Our standard for reviewing challenges to the sufficiency of the evidence is well-established. We recently restated it as follows:

We examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.

Dean v. State, 2014 WY 158, ¶ 8, 339 P.3d 509, 512 (Wyo.2014) (citing Mraz v. State, 2014 WY 73, ¶ 10, 326 P.3d 931, 934–35 (Wyo.2014) ). Further, when determining whether sufficient evidence was presented to sustain a conviction of constructive possession, this Court must consider the totality of the circumstances. Taylor v. State, 2011 WY 18, ¶ 11, 246 P.3d 596, 600 (Wyo.2011) (citing Urrutia v. State, 924 P.2d 965, 967 (Wyo.1996) ).

DISCUSSION

[¶ 11] Wyo. Stat. Ann. § 35–7–1031(c)(iii) makes it a felony “for any person knowingly or intentionally to possess [more than three ounces of] a controlled substance [in plant form.]” Wyo. Stat. Ann. § 35–7–1031(c)(i), (iii) (LexisNexis 2013). Regan argues that the evidence was deficient with respect to the chain of custody and the identification of the substance as marijuana, and also that the State failed to prove that he “possessed” enough marijuana to support a felony conviction. We will address these issues in a different order, beginning with the claim that the State failed to prove possession of a felony quantity of marijuana beyond a reasonable doubt.

Sufficiency of the Evidence

[¶ 12] Wyoming recognizes two kinds of possession of a controlled substance, actual and constructive. Actual possession obviously occurs when an individual has direct physical custody over the substance. Taylor, ¶ 11, 246 P.3d at 599–600 ; Cureton v. State, 2007 WY 168, ¶ 16, 169 P.3d 549, 552 (Wyo.2007) ; Sotolongo–Garcia v. State, 2002 WY 185, ¶ 12, 60 P.3d 687, 689–90 (Wyo.2002).

[¶ 13] Two scholars have observed that “the courts have constructed a terminology purportedly designed to focus factual inquiries on factors likely to reveal whether the defendant had the ability or capacity to possess the item.” Charles H. Whitebread & Ronald Stevens, Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751 (1972). Stated more simply, courts have “extended the concept of possession ... to include constructive as well as actual possession.” Id. The State does not argue that Regan's actions amounted to actual possession, at least of a felony quantity of marijuana. Rather, it asserts only that Regan constructively possessed all of the marijuana found in his car.

[¶ 14] “The word ‘possession’ is often used in the criminal law without definition, which perhaps reflects only the fact that it is ‘a common term used in everyday conversation that has not acquired any artful meaning.’ ” 1 Wayne R. LaFave, Substantive Criminal Law, § 6.1(e), at 432 (2d ed. 2003) (citing Kramer v. United States, 408 F.2d 837 (8th Cir.1969) ). However, “[t]he word ‘possession,’ though frequently used in both ordinary speech and at law, remains one of the most elusive and ambiguous of legal constructs.... Currently, the most controversial use of possession is the doctrine of constructive possession in narcotics cases.” Whitebread & Stevens, supra, at 751.

[¶ 15] It is well established that in order to convict for possession of illegal drugs, the prosecution must prove beyond a reasonable doubt that the accused: (1) either individually or jointly with another exercised dominion and control over the substance; (2) had knowledge of its presence; and (3) had knowledge that the substance was a controlled substance. Taylor, ¶ 11, 246 P.3d at 599 ; Sotolongo–Garcia, ¶ 12, 60 P.3d at 689 ; Wise v. State, 654 P.2d 116, 119 (Wyo.1982). The parties disagree as to whether the State proved the first element beyond a reasonable doubt, and specifically whether it showed that Regan exercised the requisite dominion and control over a sufficient quantity of the marijuana to support a felony conviction.

[¶ 16] Our case law defines the terms “dominion and control” in a somewhat vague and circular manner, reciting the requirement that the accused must have the “requisite control” without offering much guidance as to the proof required to establish it. See Seeley v. State, 959 P.2d 170, 176 (Wyo.1998). Wyoming's Criminal Pattern Jury Instruction regarding constructive possession provides in part that “[a] person who, although is not in actual possession, knowingly has both...